Citation Nr: 9827144
Decision Date: 09/10/98 Archive Date: 09/17/98
DOCKET NO. 93-15 516 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUES
1. Entitlement to service connection for sinusitis.
2. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
asthma.
3. Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for a
bilateral foot condition.
REPRESENTATION
Appellant represented by: AMVETS
WITNESSES AT HEARING ON APPEAL
Appellant and [redacted]
ATTORNEY FOR THE BOARD
L. M. Barnard, Counsel
INTRODUCTION
The veteran served on active duty from November 1961 to
November 1963.
In August 1973, the Board of Veterans' Appeals (Board) issued
a decision which found that service connection was not
warranted for either asthma or a bilateral foot condition.
It was determined that these conditions had both preexisted
service and had not been aggravated by that service. In
March 1975, the Board issued another decision which found
that he had suffered from clubfoot prior to service which had
not been aggravated by that service. It was also determined
that arthritis had not been present in service and had not
manifested to a compensable degree within one year of his
separation. The Board also issued a decision in September
1987 which ascertained that the veteran had not submitted new
and material evidence to reopen his claim for service
connection for asthma.
This appeal arose from an October 1992 rating decision of the
Roanoke, Virginia, Department of Veterans Affairs (VA),
Regional Office (RO), which denied entitlement to the
benefits sought. In October 1993, the veteran and a friend
testified at a personal hearing before a member of the Board.
In April 1995, this case was remanded for additional
development, following which the denials of the requested
benefits were confirmed and continued by a rating action
issued in December 1996. In July 1997, the Board remanded
this case again for further development, following which a
decision was rendered in December 1997, which continued the
refusal to reopen the veteran’s claims for service
connection.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends, in essence, that his asthma and his
foot conditions were aggravated by his period of service. He
stated that neither of these conditions required treatment
prior to his period of service; however, such treatment has
been required ever since his discharge. Therefore, he
asserted that it is clear that service worsened his
conditions. He also asserted that he currently suffers from
sinusitis that first manifested itself during his service.
Therefore, he believes that service connection should be
granted.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appellant has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claim for
service connection for sinusitis is well grounded; the
evidence is against the veteran’s claims that he has
presented new and material evidence to reopen his claims for
service connection for asthma and a bilateral foot condition.
FINDINGS OF FACT
1. The veteran has not been shown by competent medical
evidence to suffer from sinusitis which can be related to
service.
2. The Board denied entitlement to service connection for
asthma in September 1987.
3. Additional evidence submitted since that time fails to
show that the asthma, which preexisted service, was
aggravated by that service.
4. The Board denied entitlement to service connection for a
bilateral foot condition in March 1975.
5. Additional evidence submitted since that time fails to
show that a bilateral foot condition, which preexisted
service, was aggravated by that service, or that arthritis
manifested either in service or to a compensable degree
within one year of discharge.
CONCLUSIONS OF LAW
1. The appellant has not submitted evidence of a well
grounded claim for sinusitis. 38 U.S.C.A. §§ 1131, 5107(a)
(West 1991).
2. Evidence received since the Board denied entitlement to
service connection for asthma in 1987 is not new and
material, and the September 1987 decision of the Board is
thus final and is not reopened. 38 U.S.C.A. §§ 1131, 1153,
5107(a), 7104(b) (West 1991); 38 C.F.R. §§ 3.156, 3.306,
20.1105 (1997).
3. Evidence received since the Board denied entitlement to
service connection for a bilateral foot condition in 1975 is
not new and material, and the March 1975 decision of the
Board is thus final and is not reopened. 38 U.S.C.A.
§§ 1101, 1112, 1113, 1131, 1153, 5107(a), 7104(b) (West
1991); 38 C.F.R. §§ 3.156, 3.306, 3.307, 3.309, 20.1105
(1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Entitlement to service connection for
sinusitis
The threshold question to be answered in this case is whether
the appellant has presented evidence of a well grounded
claim; that is, one which is plausible. If he has not
presented a well grounded claim, his appeal must fail and
there is no duty to assist him further in the development of
his claim because such additional development would be
futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v.
Derwinski, 1 Vet. App. 78 (1990). As will be explained
below, it is found that his claim is not well grounded.
Under the applicable criteria, service connection may be
granted for a disability the result of disease or injury
incurred in or aggravated by service. 38 U.S.C.A. § 1131
(West 1991).
The veteran’s service medical records included the October
1961 entrance examination which noted that his sinuses were
normal. A sinus x-ray was obtained in June 1962; it was
noted to be somewhat unsatisfactory due to overexposure.
There was a suggestion of haziness in the inferior portion of
the left frontal sinus, which could have been due to
recurrent inflammatory disease. The remaining sinuses
appeared to be normal. During the August 1963 separation
examination, he complained of sinusitis, commenting that he
had sinus trouble in the fall and hay fever in the spring.
The examination was negative.
The veteran was examined by VA in March 1973. His sinuses
were within normal limits. A private outpatient treatment
record from April 1987 found rhinitis with stable bronchial
asthma.
A July 1992 statement from the veteran’s aunt noted that he
had worked in a laundry prior to service and had had no
problems with his sinuses. She commented that he had written
letters to her during service complaining about his sinuses
(none of these letters were submitted). After his
separation, she stated that he received treatment for his
sinuses. An October 1993 statement indicated that the
veteran began to suffer from sinus complaints after being
sent to Germany.
The veteran testified at a personal hearing in October 1993.
He stated that he did not have any trouble with his sinuses
before entry onto active duty. He also indicated that he had
been told in 1963 that he had a sinus condition.
Initially, in order to establish service connection, the
following three elements must be satisfied: 1) the existence
of a current disability; 2) the existence of a disease or
injury in service, and 3) a relationship or nexus between the
current disability and a disease contracted or an injury
sustained in service. Caluza v. Brown, 7 Vet. App. 498
(1995); Grivois v. Brown, 6 Vet. App. 136 (1994); Grottveit
v. Brown, 5 Vet. App. 91 (1993); Rabideau v. Derwinski, 2
Vet. App. 141 (1992).
In the instant case, the objective service medical records do
not show a confirmed diagnosis of sinusitis. While there was
one overexposed x-ray in June 1962 that suggested haziness in
the left frontal sinus, no diagnosis of sinusitis was
rendered. Moreover, there were no subsequent records
reflecting treatment for this condition and the August 1963
separation examination did not identify this disorder.
Therefore, he has failed to satisfy the requirement of the
existence a disease in service. See Caluza, supra.
Moreover, the evidence developed after his separation from
service does not contain a diagnosis of sinusitis (rhinitis
was diagnosed on one occasion in April 1987). Therefore, he
has failed to establish the presence of a current disability.
Since there is no objective evidence of either a disease in
service or the existence of a current disability, the
question of a relationship between the two is moot.
The appellant has not informed VA of the existence of any
specific evidence germane to any claim at issue that would
complete an incomplete application for compensation, i.e.,
well ground an otherwise not well grounded claim, if
submitted. Consequently, no duty arises in this case to
inform that appellant that his application is incomplete or
of actions necessary to complete it. See 38 U.S.C.A.
§ 5103(a) (West 1991); Beausoleil v. Brown, 8 Vet. App. 459 ,
465 (1996); Johnson v. Brown, 8 Vet. App. 423, 427 (1995);
cf. Robinette v. Brown, 8 Vet. App. 69 (1995) (when a claim
is not well grounded and claimant inform VA of the existence
of certain evidence that could well ground the claim, VA has
duty under 38 U.S.C.A. § 5103(a) to inform claimant that
application for compensation is incomplete and to submit the
pertinent evidence).
II. Whether new and material evidence
has been submitted to reopen the claims
of entitlement to service connection for
asthma and a bilateral foot condition
Initially, the applicable law clearly states that, when a
claim is disallowed by the Board of Veterans' Appeals, it may
not thereafter be reopened and allowed, and no claim based
upon the same factual basis shall be considered. 38 U.S.C.A.
§ 7104(b) (West 1991). However, when a claimant requests
that a claim be reopened after an appellate decision and
submits evidence in support thereof, a determination as to
whether such evidence is new and material must be made. 38
U.S.C.A. § 7104 (West 1991); 38 C.F.R. § 20.1105 (1997).
"New and material evidence" means evidence not previously
submitted to agency decisionmakers which bears directly and
substantially upon the specific matter under consideration,
which is neither cumulative nor redundant, and which by
itself or in conjunction with evidence previously assembled
is so significant that it must be considered in order to
fairly decide the merits of the claim. 38 C.F.R. § 3.156(a)
(1997).
Under the applicable criteria, service connection may be
granted for a disability the result of disease or injury
incurred in or aggravated by service. 38 U.S.C.A. § 1131
(West 1991).
A veteran who had wartime service or peacetime service, after
December 31, 1946, is presumed to be in sound condition
except for those defects noted when examined and accepted for
service. Clear an unmistakable evidence that a disability
which was manifested in service existed before service will
rebut the presumption. 38 U.S.C.A. § 1111 (West 1991). A
preexisting injury or disease will be considered to have been
aggravated by active service, where there is an increase in
disability during such service, unless there is a specific
finding that the increase in disability is due to the natural
progress of the disease. 38 U.S.C.A. § 1153 (West 1991);
38 C.F.R. § 3.306(a) (1997). Clear and unmistakable evidence
(obvious or manifest) is required to rebut the presumption of
aggravation where the preservice disability underwent an
increase in severity during wartime service. This includes
medical facts and principles which may be considered to
determine whether the increase is due to the natural progress
of the condition. Aggravation may not be conceded where the
disability underwent no increase in severity during service
on the basis of all the evidence of record pertaining to the
manifestations of the disability prior to, during and
subsequent to service. 38 U.S.C.A. § 1153 (West 1991);
38 C.F.R. § 3.306(b) (1997). The specific finding requiring
that an increase in disability during peacetime service is
due to the natural progress of the condition will be met when
the available evidence of a nature generally acceptable as
competent shows that the increase in severity of a disease or
injury or acceleration in progress was that normally to be
expected by reason of the inherent character of the condition
or influence peculiar to military service. Consideration
will be given to the circumstances, conditions and hardships
of service. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R.
§ 3.306(c) (1997).
Where a veteran has served for 90 days or more during a
period of war, or during peacetime service after December 31,
1946, and arthritis becomes manifest to a degree of 10
percent within one year from the date of termination of such
service, such disease shall be presumed to have been incurred
in service, even though there is no evidence of such disease
during the period of service. This presumption is rebuttable
by affirmative evidence to the contrary. 38 U.S.C.A.
§§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309
(1997).
FACTS
Asthma
The evidence which was of record when the Board considered
this case in September 1987 will be briefly summarized. The
service medical records included an October 1961 entrance
examination which noted that the veteran’s lungs were clear.
He indicated at the time of this examination that he had hay
fever. On March 14, 1962 he complained of shortness of
breath after running in basic training. He indicated that he
would wake up at night with dyspnea and sweating. He
reported having a mild cough. The objective examination
noted scattered expiratory and inspiratory wheezes with
rales. The impression was questionable early asthmatic. Two
days later he reported still suffering from shortness of
breath and wheezing. On March 20, 1962, he indicated that he
had had no relief after the use of medication. However, his
symptoms were noted to be not as severe and it did not appear
that he had asthma. On April 24, 1962, he was noted to have
scattered expiratory wheezes at the end of expiration. The
impression was spasmodic bronchioles. On May 17, 1962, he
complained of wheezing for the past 10 days. The physical
examination noted audible wheezes, and he was treated with
asthma medications. On June 13, 1962, he reported having had
asthma “all of his life.” Expiratory wheezes were noted at
the right base and the left apex. No eosinophils were noted.
Pulmonary function studies conducted on June 18 and 21, 1962
showed 70 percent and 82 percent of expected values,
respectively. He was then hospitalized in September 1962, at
which time he reported having symptoms since the age of 12
which had manifested as hay fever. Asthma developed shortly
thereafter. He would reportedly suffer from wheezing and a
sensation of chest tightness, which was associated with
coughing and difficulty breathing. He indicated that his
asthma was worse between November and April but that he had
symptoms all year. He stated that the condition was no
better or worse than before. The physical examination noted
that his chest was full of inspiratory and expiratory musical
wheezes. He was found to have perennial allergic asthma and
allergic vasomotor rhinitis. Bronchial asthma was again
diagnosed in January 1963. During the August 1963 separation
examination, he complained of sinusitis, hay fever, asthma,
shortness of breath and coughing. He reported having had
asthma for many years. The objective examination was
negative.
Following service, the veteran submitted a statement from a
private physician in January 1973. This physician indicated
that he had treated the veteran for bronchial asthma and
bronchitis at intervals since 1950. A VA examination
conducted in March 1973 noted that a chest x-ray was
consistent with slight bronchitis. A pulmonary function test
noted vital capacity was 83 percent of normal. The diagnosis
was bronchial asthma.
The Board issued a decision in August 1973 which found that
bronchial asthma had clearly and unmistakably preexisted
service and had not been aggravated by that service.
The veteran was treated on an outpatient basis by a private
physician between January and March 1979. In March, he was
noted to have mild expiratory wheezes. Pulmonary function
tests revealed moderately severe obstructive lung disease
with very minimal reversal with inhaled bronchodilators. The
assessment was mildly severe asthma with possibly underlying
permanent obstructive lung disease. A March 1986 statement
from a private physician noted that the veteran had had an
acute attack of asthma in January, and that his asthma was
requiring increased treatment. A private physician stated in
June 1986 that the veteran’s attacks of bronchial asthma were
becoming more frequent.
The evidence received after the September 1987 refusal by the
Board to reopen the veteran’s claim for service connection
for asthma included a lay statement from his aunt, who
indicated that the veteran had had an inordinate number of
colds as a teen, which were often accompanied by wheezing.
However, she indicated that he seemed to get better,
participating in sports and working in a laundry. She
recalled no problems with asthma. She stated that he had
written to her during service about suffering from asthma.
Ever since his return from service, he has required treatment
for this condition. Another lay statement submitted in
October 1993, noted that the author had known the veteran
since 1950 and that he could not recall him suffering from
asthma. He was fine until he was sent to Germany; he then
began to complain about labored breathing and wheezing.
The veteran testified at a personal hearing in October 1993.
He stated that he had had whooping cough and hay fever before
service, and he denied ever being told that he had asthma.
He stated that prior to service he had no trouble breathing,
that this difficulty first began in service. He was first
told that he had asthma in 1962. He was treated with
medications, which he stated he has needed ever since his
separation. A friend testified that he had known the veteran
since childhood and that he had not had any trouble breathing
then. He indicated that he had first seen the veteran within
a year of his discharge and that he told him at that time
that he had been to a doctor for his lungs.
Bilateral foot condition
The evidence which was of record when the Board considered
this issue in March 1975 will be briefly summarized. The
service medical records included the October 1961 entrance
examination which noted that his feet were normal. In
February 1962 he complained that his feet hurt. He thought
that he might need corrective shoes. In March 1962 he was
noted to have symptomatic pes planus. An x-ray of the feet
was taken in September 1962. There was no evidence of
fracture or dislocation. There was some metatarsus adductus
and pes planus deformity present. He was reported to have
had club feet as a child which had been treated with casts
and surgery. The mid tarsal joints were now deformed
bilaterally, with no eversion and persisting calcaneus varus.
On October 15, 1962, he reported that his feet were still
painful, with the right being worse. He stated that the pain
would be there in the morning and would progress throughout
the day. An x-ray revealed old club foot. He was treated
with longitudinal arch supports. In November 1962, it was
recommended that he be placed on a profile which prohibited
his walking or standing for prolonged periods. This profile
was renewed in April and July 1963. During the August 1963
separation examination he complained of foot pain after
walking. The examination was negative.
Following his release from service, his private physician
noted in January 1973 that he had recently treated the
veteran for painful feet. A March 1973 VA examination noted
that his musculoskeletal system was normal. Records from
1947 indicated that he had been treated for club feet as a
child.
A Board decision rendered in August 1973 found that the
veteran had had club feet prior to service, which had been
treated with surgery, and which had not been aggravated by
his service.
A private physician treated the veteran in August 1974 for
severe pain in both arches and ankles. The objective
examination noted severe pronation of the mid-tarsal area
bilaterally. The diagnoses were pes planus bilaterally and
osteoarthritis of both feet.
The veteran also sought treatment from VA between January
1973 and September 1974. In June 1974, he was seen for
residual of club foot deformities, which were considered to
be operable. An x-ray revealed mild demineralization of the
bones of the feet and first degree bunion formation on the
right.
The evidence received since the March 1975 Board decision
included a July 1992 statement from the veteran’s aunt. It
was commented that the veteran had written letters during
service complaining of aching feet. She also noted that he
had gotten treatment for his feet after service. An October
1993 lay statement also referred to the veteran’s foot
problems in service.
The veteran testified at a personal hearing in October 1993.
He stated that he had had club foot before service, but that
this condition had not bothered him prior to entry onto
active duty; in fact, he noted that he had played football.
He had not worn any special shoes before service. He
indicated his belief that the activities required by military
service aggravated his condition to the point that he needed
to wear inserts. He indicated that he now wears these
inserts every day.
ANALYSIS
Asthma
After a review of the complete record, it is found that the
additional evidence which the veteran has submitted is not
“new and material.” Accordingly, his claim is not reopened
and the Board’s 1987 decision remains final.
"New" evidence means more than evidence which was not
previously physically of record. To be "new," additional
evidence must be more than merely cumulative. Colvin v.
Derwinski, 1 Vet. App. 171 (1991). The additional evidence
presented in this case is merely cumulative. The evidence
previously of record revealed that the veteran suffered from
asthma prior to service (according to the service medical
records and a post-service statement from his private
physician, his current assertions notwithstanding), which did
not increase in severity during service (as evidenced by the
similar vital capacity percentages noted by pulmonary
function tests both during and after service, as well as by
the similarity between the symptoms referred to prior, during
and after service). The records submitted after the Board’s
1987 denial show nothing new. He submitted lay statements
from a relative and a friend, which referred to his lack of
symptoms prior to service. However, these assertions differ
markedly from the objective evidence previously submitted,
which did refer to preservice symptoms (including his own
statements made during treatment in service). While he
continued to assert that his symptoms worsened during
service, the objective evidence does not support such a
conclusion. In fact, he did not submit any clinical records
developed after the last denial that would support his
contention that his asthma increased in severity during
service.
Similarly, the additional evidence is not "material."
Assuming, without deciding, that the additional evidence is
relevant and probative, there is no reasonable possibility
that the additional evidence, when viewed in context with all
the evidence, both old and new, would change the outcome.
See Colvin and Smith v. Derwinski, 1 Vet. App. 178 (1991).
The additional evidence contains no objective proof whatever
that the asthma, which preexisted service, increased in
severity during service. While the veteran, as well as a
relative and a friend, asserted that such was the case, he
has presented no objective evidence that would tend to show
such an increase in severity. As laypersons, they are not
qualified to render medical opinions. See Espiritu v.
Derwinski, 2 Vet. App. 492 (1992). Therefore, it is
concluded that the veteran has failed to present new and
material evidence to reopen his claim for service connection
for asthma.
Bilateral foot condition
After a review of the complete record, it is found that the
additional evidence which the veteran has submitted is not
“new and material.” Accordingly, his claim is not reopened
and the Board’s 1975 decision remains final.
"New" evidence means more than evidence which was not
previously physically of record. To be "new," additional
evidence must be more than merely cumulative. Colvin v.
Derwinski, 1 Vet. App. 171 (1991). The additional evidence
presented in this case is merely cumulative. The evidence
previously of record revealed that the veteran had club feet
prior to service, for which he was treated surgically, which
was found to have undergone no increase in severity during
service (particularly in light of the negative separation
examination and the lack of any recorded complaints for
approximately ten years after his discharge). The evidence
which was submitted after the March 1975 denial showed
nothing new. These showed the same complaints of pain as
before, and while osteoarthritis was diagnosed in 1974, there
was no evidence offered to suggest that this disorder either
existed in service or had manifested to a compensable degree
within one year of his separation.
Similarly, the additional evidence is not "material."
Assuming, without deciding, that the additional evidence is
relevant and probative, there is no reasonable possibility
that the additional evidence, when viewed in context with all
the evidence, both old and new, would change the outcome.
See Colvin and Smith v. Derwinski, 1 Vet. App. 178 (1991).
The additional evidence contains no objective proof whatever
that the veteran’s bilateral foot condition, which had
preexisted service, was aggravated by that service. The
medical evidence submitted after his discharge referred to
treatment for similar complaints of pain. While the veteran,
his aunt and a friend have made statements concerning his
lack of symptoms prior to service, they can offer no insight,
as laypersons, into whether his condition increased in
severity during service, which is clearly a medical
conclusion. See Espiritu, supra. The fact remains that
there is no objective medical evidence that would support the
conclusion that his period of service resulted in an increase
in severity of his preexisting bilateral foot condition. As
a consequence, it is found that the veteran has not presented
new and material evidence to reopen his claim for service
connection for a bilateral foot condition.
ORDER
Service connection for sinusitis is denied.
New and material evidence not having been submitted to reopen
a claim of entitlement to service connection for asthma, the
benefit sought on appeal is denied.
New and material evidence not having been submitted to reopen
a claim of entitlement to service connection for a bilateral
foot condition, the benefit sought on appeal is denied
C. P. RUSSELL
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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